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GCRC Interview: Dennis Kennedy, Vice President, Counsel at MasterCard Worldwide - Whole Interview

Our latest GCRC Interview is with Dennis Kennedy, Vice President, Counsel in the law department of MasterCard Worldwide where he focuses on information technology law. He is also a legal technology author well known for his influential role in promoting the use of technology in the practice of law. Dennis writes a monthly technology column for the American Bar Association Journal, co-hosts a legal technology podcast called The Kennedy-Mighell Report on the Legal Talk Network, and has co-authored three books: Facebook in One Hour for Lawyers (with Allison Shields), LinkedIn in One Hour for Lawyers (with Allison Shields), and The Lawyer’s Guide to Collaboration Tools and Technologies: Smart Ways to Work Together (with Tom Mighell). He has published hundreds of articles on legal technology topics and currently serves on the board of the American Bar Association’s Legal Technology Resource Center. His blog, DennisKennedy.Blog (http:// denniskennedy.com/blog/) is a highly regarded resource on technology topics.

You have experience in both technology and the law. How do the two complement each other? 

Because I focus on information technology law, the overlap of technology and law is probably more apparent to me than most lawyers in connection with my everyday work. However, over the years, the tools we use in the practice of law have increasingly become technology tools. I’m not sure that even twenty years ago that you could walk through a law office and see every lawyer in front of a computer screen. It’s vastly different today. It’s impossible to imagine doing legal work without email, the Internet and other basic technology tools. Because legal work is so collaborative, there’s a push to use new collaborative technologies, communication technologies and specialized practice technologies on an ongoing basis. We’ve still yet to get much past breaking the surface of analytical, automation and knowledge management tools.

Knowing something about technology helps you understand the options and select technology tools for your work and for working with others. More importantly, understanding technologies often helps me ask the right legal questions and reassure people that I understand the technologies they work with. That permits a more nuanced legal conversation and helps me get the insights of the people who understand what the technology can accomplish and how it works. I’ve talked to many technical and business people over the years who are extremely frustrated at how little their lawyers know or are even willing to try to learn about the technologies they use every day. As a big example, I’ve never understood how lawyers think that they can manage electronic discovery without understanding the underlying technologies.

At the same, knowing the legal side of some of these issues gives a better perspective on what technologies you want to use. Backup, security, encryption and the like are all technology issues that can have legal consequences. 

Fifteen years ago, I changed my area of practice to align my interests in technology, especially the Internet, with my legal practice area. I see law and technology as very entwined for me, but it also seems that the overlap of the two is becoming more ubiquitous and more important for all lawyers today – and will be more so in the future. For me, the ability to communicate in language that both lawyers and IT people can understand is very important, and why technical people like to work with me.

Rob Thomas from Serengeti Law told us that in-house counsel need to run their department like more of a business department. What technologies can in-house counsel use to better align their work to the demands of their employees? 

I’ve always enjoyed Rob’s perspectives and insights and I agree with his comment. I also suspect that most departments try to run their technology in this way, but often are in a stage of evolution where they wish they were further down the road in the process. Since I’ve been writing and speaking about legal technology and law practice management for many years, it’s interesting to note how little information and guidance there is for in-house counsel about technology as compared to the large amounts of information available for solo and small firm lawyers and large law firms. I’ve noticed that the two areas where there is too little information about legal technology are medium-sized firms and corporate law departments. That probably should not be much of a surprise since many law departments are the same size as medium-sized law firms. 

At the medium-sized firm or department level, technology choices become a little difficult because of all the different needs of different parts of the group. It’s difficult to find one-size-fits-all approaches, especially since litigation tools are so different from contract tools. It can be difficult to evaluate different technologies and, often, corporate IT departments dictate technology choices, especially for software or cloud services.

My sense is that corporate legal departments need to reach out more to find relevant information about technology and learn what their peers are doing. I’m not a big believer in “best practices” because so many departments and their requirements are so different, but it is useful to reach out to your peers, especially those of a similar size and focus, and try to find out what works and what hasn’t worked. Keeping up with standard resources on legal technology – the American Bar Association’s Legal Technology Resource Center and its Law Practice Management Section, Technolawyer.com, Association of Corporate Counsel, International Legal Technology Association, to name a few – is a great approach. I’d also think that once a law department gets to be a certain size, perhaps ten or more employees, some form of technology committee probably starts to make good sense. Following the general approach of law firms is not a bad first step when it comes to evaluation and decision-making for corporate law departments. A big part of the battle is simply finding out what technology choices are out there.

We often hear that in-house lawyers at companies do no work well enough with their colleagues in the IT department - whether that be combatting cybercrime, assessing new technologies, or implementing new legal technologies? Why is this and how bad are the possible ramifications here?

While I’m not sure that I completely agree with the premise of the question, I’ve certainly heard and read people making those comments. Technology is changing so fast that everyone, in IT or not, is having trouble keeping up with the pace of change. I was recently at a seminar that featured a panel of general counsels and they were asked “what issue keeps you awake at night?” Every member of the panel said “cybersecurity.” Many technologies raise novel issues and all of us can be in uncharted territory. Collaboration with IT departments and other groups is essential. Corporate lawyers realize that and are taking steps, but the pace of change is so fast that they often are playing a game of catch-up. 

With all of the talk about meta data, data privacy, cybercrime and so on at the moment, how important is it for in-house lawyers to have cutting edge expertise in all maters ‘cyber’? Just how big is ‘cyberlaw’ going to be?

For purely personal reasons, I hope that cyberlaw is going to be huge. But, seriously, just look at the news. The overlap of law and technology hits us in many ways every day. You need to have a certain level of understanding of the underlying technology to know what questions to ask, to assess and evaluate risks, to spot and address issues, and to have a sense of what is coming down the road. The sheer numbers associated with some technologies are staggering – Facebook has over a billion users and users spend at least 25 minutes a day on the service – and technology is changing how we interact and work with people, buy and sell things and more. It’s creating business where none existed before and raising global implications even for small, once local only, businesses. 

That said, I expect “cyberlaw” not to become a separate area of practice, but to get folded into existing areas. There definitely are areas like data privacy and others that might reach a stand-alone practice status and be referred to “cyberlaw,” but the “cyber” issues will become part of every practice area.

 Assuming that I’m right about that, having a solid level of technical knowledge, even if it doesn’t rise to the level of “expertise,” will be essential, both for the legal work itself and, more importantly, to communicate with technical and business people about legal issues in the technology ecosystem.

If you are at liberty to tell us, how do you personally use technology to help your work?

I’m going to duck the work part of this question, but I’ll talk a bit about what I use personally. I shifted over to the Mac world a few years ago and my MacBook Air is my favorite computer ever. For convenience, I’ve stayed in the Apple ecology with an iPhone and iPad Mini. I enjoy experimenting with Open Source software, mobile apps and hosted web services (formerly known as Web 2.0). Lately, I’ve been working on making Evernote the foundation for my writing, speaking and other personal projects. I’m also intrigued by the ways I can use LinkedIn and Facebook in much more powerful ways than I’ve ever done before.

What phone or tablet applications are useful for lawyers?

My friend Tom Mighell has written a helpful book on this subject called iPad Apps in One Hour for Lawyers. That’s a great place to start. Recently, I’ve become quite interested in the “Job to be Done” approach developed by Clayton Christensen (author of The Innovator’s Dilemma), especially as it applies to technology. The basic idea is that we ask ourselves “What am I hiring this technology to do?” It works well with mobile apps. What’s best for me is likely to be different from what is best for you, but what really matters is what the job we are trying to get done is. 

That’s an aspirational approach. I’ll admit that I really like a website/blog/app called Apps Gone Free that gives you a daily list of pay iOS apps that are available for free for a limited time. It’s hard to resist trying interesting apps that become available for free and so, by any measure, I have too many apps. I often argue that a mobile outliner app would be the perfect app for lawyers, but I can’t find lawyers who will agree with me. I like "helper apps" - essentially, the apps that work as a mobile version of other programs or services. Examples are Facebook, LinkedIn, Twitter and Evernote apps. When I'm traveling, travel apps are great. That's an illustration of how "what am I hiring an app to do while I'm traveling?" is such a useful approach. On the average day, I have no need for a travel app, but, on the road, they are great. Going back to "helper apps," think in terms of how an app can help you use or get data into or out of another program or service you use while you are away from your desk and you'll probably find some apps that help you. Apps are so easy to experiment with – you should try out apps that look like they might help you, especially if they are free.